AN ACT
to amend and reenact §3-4A-9 and §3-4A-28 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto two new sections, designated §3-4A-9a and §3-
4A-9b, all relating to electronic voting systems; requiring a
paper copy of a voter's votes when using an electronic voting
system to vote; providing that the paper copy can only be used
for a random count of precincts or if an election is
contested, challenged or disputed; providing that the
Secretary of State may promulgate rules; authorizing use of
ballot-marking accessible voting systems; setting forth
minimum requirements for ballot-marking accessible voting
systems; providing for use of ballot-scanning device;
establishing standards for ballot-scanning devices; and making
certain technical changes that clarify access to maintenance
and examination of sealed post-election materials and
equipment during the canvass and requiring the immediate resealing.

Be it enacted by the Legislature of West Virginia:That §3-4A-9 and §3-4A-28 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §3-4A-9a and §3-4A-
9b, all to read as follows:ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may
not be approved by the State Election Commission or be purchased,
leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;
(2) It is constructed to ensure that no person, except in
instances of open voting as provided in this section, can see or
know for whom any voter has voted or is voting;
(3) It permits each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any person appears on
a ballot or ballot label as a candidate; and it permits each voter
to vote for as many persons for an office as he or she is lawfully
entitled to vote for; and to vote for or against any question upon which he or she is lawfully entitled to vote. The automatic
tabulating equipment used in electronic voting systems is to reject
choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;
(4) It permits each voter to deposit, write in, affix upon a
ballot, card, envelope or other medium to be provided for that
purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots or
ballot labels;
(5) It permits each voter to change his or her vote for any
candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in
the ballot box or his or her ballot is cast by electronic means;
(6) It contains a program deck consisting of cards that are
sequentially numbered or consisting of a computer program disk,
diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from
tampering or substitution of the media or program instructions by
unauthorized persons and capable of tabulating all votes cast in
each election;
(7) It contains two standard validation test decks approved as
to form and testing capabilities by the State Election Commission;
(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon the ballots or ballot labels;
(9) It permits each voter at any election other than primary
elections by one mark or punch to vote a straight party ticket, as
provided in section five, article six of this chapter;
(10) It permits each voter in primary elections to vote only
for the candidates of the party for which he or she is legally
permitted to vote and precludes him or her from voting for any
candidate seeking nomination by any other political party, permits
him or her to vote for the candidates, if any, for nonpartisan
nomination or election and permits him or her to vote on public
questions;
(11) It, where applicable, is provided with means for sealing
or electronically securing the vote recording device to prevent its
use and to prevent tampering with ballot labels, both before the
polls are open or before the operation of the vote recording device
for an election is begun and immediately after the polls are closed
or after the operation of the vote recording device for an election
is completed;
(12) It has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;
(13) (A) Direct recording electronic voting machines must
generate a paper copy of each voter's votes that will be
automatically kept within a storage container, that is locked, closely attached to the direct recording electronic voting machine,
and inaccessible to all but authorized voting officials, who will
handle such storage containers and such paper copies contained
therein in accordance with section nineteen of this article.
(B) The paper copy of the voter's vote shall be generated at
the time the voter is at the voting station using the direct
recording electronic voting machine.
(C) The voter may examine the paper copy visually or through
headphone readout, and may accept or reject the printed copy.
(D) The voter may not touch, handle or manipulate the printed
copy manually in any way.
(E) Once the printed copy of the voter's votes is accepted by
the voter as correctly reflecting the voter's intent, but not
before, it will automatically be stored for recounts or random
checks and the electronic vote will be cast within the computer
mechanism of the direct recording electronic voting machine.
(F) Direct recording electronic voting machines with a
mandatory paper copy shall be approved by the Secretary of State.
The Secretary of State may promulgate rules and emergency rules to
implement or enforce this subsection pursuant to the provisions of
section five, article three, chapter twenty-nine-a of this code.
(14) Where vote recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely transportable;
(B) Be constructed with frames for the placing of ballot
labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that
the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;
(C) Bear a number that will identify it or distinguish it from
any other machine;
(D) Be constructed to ensure that a voter may easily learn the
method of operating it and may expeditiously cast his or her vote
for all candidates of his or her choice and upon any public
question;
(E) Be accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of ballot
labels, party columns or rows, and questions;
(F) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of
touch, be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;
(H) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to present the entire ballot to the voter, in
a series of sequential pages, and to ensure that the voter sees all
of the ballot options on all pages before completing his or her
vote and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;
(I) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to allow election commissioners to spoil a
ballot where a voter fails to properly cast his or her ballot, has
departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of touch, be constructed to allow election commissioners, poll clerks,
or both, to designate, mark or otherwise record provisional
ballots;
(K) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device's internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;
(L) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;
(N) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to record all preelection, election and post-election activities, including all ballot images and system
anomalies, in each device's internal electronic memory and are to
be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed with a battery backup system in each device
to, at a minimum, prevent the loss of any votes, as well as all
preelection, election and post-election activities, including all
ballot images and system anomalies, stored in the device's internal
electronic memory and to allow voting to continue for two hours of
uninterrupted operation in case of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon
which votes may be recorded by means of a stylus or by means of
touch, be constructed to prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in each device's
internal electronic memory even in case of an electrical and
battery power failure.§3-4A-9a. Authorization for ballot-marking voting systems; minimum
requirements.
(a) For purposes of this section, "ballot-marking accessible
voting system" means a device which allows voters, including voters
with disabilities, to mark an optical scanning or mark-sensing
voting system ballot, privately and independently. The ballot-marking device is capable of marking voter selections on an
optically readable or mark-sensing ballot which shall be
subsequently read and tallied on state certified optically readable
or mark-sensing ballot tabulating and reporting systems. Counties
are hereby permitted to obtain and employ ballot-marking accessible
voting systems that are approved by the State Election Commission.
(b) The ballot-marking accessible voting device shall be a
completely integrated ballot-marking device that is designed to
allow voters to either view ballot choices through a high
resolution visual display or listen to ballot choices with
headphones and then enter ballot selections directly through
specially designed, integrated accessibility keys.
(c) Ballot-marking accessible voting systems may be used for
the purpose of marking or scanning optically readable or mark-
sensing ballots cast in all general, special and primary elections
and shall meet the following specific requirements:
(1) The ballot-marking accessible voting system, system
firmware and programming software must be certified by an
independent testing authority, according to current federal voting
system standards and be approved by the State Elections Commission
prior to entering into any contract.
(2) The ballot-marking accessible voting system shall,
additionally:
(A) Alert the voter if the voter has made more ballot selections than the law allows for an individual office or ballot
issue;
(B) Alert the voter if the voter has made fewer ballot
selections than the law allows for an individual office or ballot
issue;
(C) Allow the voter to independently review all ballot choices
and make any corrections, before the ballot is marked;
(D) Provide the voter with the opportunity to make a write-in
ballot choice, where allowed by state law;
(E) Allow voters with disabilities to mark their ballots, in
complete independence, and in conformity with both federal and
state law concerning mandatory accessibility for disabled persons;
(F) Allow blind or visually impaired voters to vote in
complete privacy;
(G) Provide voters with an opportunity to change ballot
selections, or correct errors, before the ballot is marked for
voting, including the opportunity to correct the error through the
issuance of a replacement ballot if the voter was otherwise unable
to change the ballot or correct the error;
(H) Provide voters with the ability to view all ballot
selections through a high resolution visual display or to have all
ballot selections read to the voter through headphones;
(I) Ensure complete ballot privacy, while employing the
ballot-marking audio system and providing the voter with the option to turn off the visual ballot display;
(J) Include a completely integrated voter input keypad, using
commonly accepted voter accessibility keys with Braille markings;
(K) Include the ability for a voter to employ a sip/puff
device to enter ballot choices;
(L) Allow the voter to magnify all ballot choices and to
adjust both the volume of the audio feature and the speed of ballot
presentation;
(M) Allow the voter to employ his or her own headset as well
as the headset provided with the ballot-marking device while being
equipped with multiple output connections to accommodate different
headsets;
(N) Have multiple-language capability; and
(O) Allow the voter to verify that:
(i) An optical scan ballot inserted into the device at the
start of voting is blank; and
(ii) The voted optical scan ballot that is produced by the
device is voted as the voter intended.
(d) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
designed to ensure that any system employed by a county under the
provisions of this section is publicly tested prior to use in
election.§3-4A-9b. Authorization for precinct ballot-scanning device;
minimum requirements.
(a) For purposes of this section, "precinct ballot-scanning
device" means a device used by the voter at the precinct on
election day or during early voting for the purpose of scanning the
voter's ballot after the ballot has been voted but prior to
depositing the ballot into the ballot box.
(b) The precinct ballot-scanning device may be used for the
purpose of scanning optically readable ballots cast in all primary,
general and special elections.
(c) The precinct ballot-scanning device, firmware and
programming software must be certified by an independent testing
authority, according to current federal standards and be approved
by the State Election Commission. No election official may enter
into any contract to purchase, rent, lease or otherwise acquire any
precinct ballot-scanning device, firmware or software not approved
by the State Election Commission.
(d) The precinct ballot-scanning device shall additionally:
(1) Alert the voter if the voter has made more ballot
selections than the law allows for an individual office or ballot
issue;
(2) Alert the voter if the voter has made fewer ballot
selections than the law allows for an individual office or ballot
issue; and(3) Allow voters an opportunity to change ballot selections,
or correct errors, including the opportunity to correct the error
through the issuance of a replacement ballot if the voter was
otherwise unable to change the ballot or correct the error.
(e) The precinct ballot-scanning device shall not be used for
tabulating election results.
(f) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code in
accordance with the provisions of this section.§3-4A-28. Post-election custody and inspection of vote recording
devices; canvass and recounts.
(a) The vote recording devices, the ballot labels, ballot
cards, program decks and standard validation test decks are to
remain sealed during the canvass of the returns of the election
except that the equipment may be opened for the canvass and must be
resealed immediately thereafter. During a seven day period after
the completion of the canvass, any candidate or the local chair of
a political party may be permitted to examine any of the materials
sealed: Provided, That a notice of the time and place of the
examination is to be posted at the central counting center before
and on the hour of nine o'clock in the morning on the day the
examination is to occur, and all persons entitled to be present at
the central counting center may, at their option, be present. Upon completion of the canvass and after a seven-day period has expired,
the vote recording devices, the ballot labels, ballot cards,
program decks and standard validation test decks are to be sealed
for one year: Provided, however, That the vote recording devices
and all tabulating equipment may be released for use in any other
lawful election to be held more than ten days after the canvass is
completed, and any of the electronic voting equipment herein
discussed may be released for inspection or review by a request of
a circuit court or the Supreme Court of Appeals.
(b) In canvassing the returns of the election, the board of
canvassers shall examine all of the vote recording devices, the
ballot labels, ballot cards, the automatic tabulating equipment
used in the election and those voter verified paper ballots
generated by direct recording electronic vote machines as required
by subsection (d) of this section, and shall determine the number
of votes cast for each candidate and for and against each question
and by this examination shall procure the correct returns and
ascertain the true results of the election. Any candidate or his
or her party representative may be present at the examination.
(c) If any candidate demands a recount of the votes cast at an
election, the voter verified paper ballot shall be used for
requested recounts, according to the same rules as are utilized in
the original vote count pursuant to section twenty-seven of this
article.
(d) During the canvass and any requested recount, at least
five percent of the precincts are to be chosen at random and the
voter verified paper ballots are to be counted manually. Whenever
the vote total obtained from the manual count of the voter verified
paper ballots for all votes cast in a randomly selected precinct:
(1) Differs by more than one percent from the automated vote
tabulation equipment; or
(2) Results in a different prevailing candidate or outcome,
either passage or defeat, of one or more ballot issues such
precincts for any contest or ballot issue;
then the discrepancies shall immediately be disclosed to the public
and all of the voter-verified paper ballots shall be manually
counted. In every case that there is a difference between the vote
totals obtained from the automated vote tabulation equipment and
the corresponding vote totals obtained from the manual count of the
voter-verified paper ballots, the manual count of the
voter-verified paper ballots shall be the vote of record.